Breaking Up Is Hard to Do
False confessions, graphic testimony, framed spouses and 'unknown blondes': a history of the difficulty in getting divorced, and how it could now change
Unhappy couples in New York have long gone to extremes to throw off the shackles of matrimony—in the worst cases, framing their spouses, producing graphic testimony about affairs, or even confessing to crimes they did not commit. All this will fade into the past if, as expected, Gov. David Paterson signs a bill making New York the last state in the country to adopt unilateral no-fault divorce.
Their counterparts in other states have had it much easier. California adopted the first no-fault divorce bill in 1970; by 1985, every other state in the nation—but one—had passed similar laws. In New York, the miserably married must still charge each other with cruel and inhuman treatment, adultery or abandonment—or wait one year after a mutually agreed legal separation—in order to divorce.
New York's first divorce law was passed in 1787, at the initiative of a cuckold named Isaac Gouverneur, who had the good fortune of securing Alexander Hamilton as his counsel. From then until the Divorce Reform Law of 1966, adultery was considered the only grounds sufficient for divorce. The woman whose husband fled West; the wife who was physically abused; even a man who discovered on his wedding night that his bride was of "doubtful sex" did not meet the criteria for a full divorce. If they were lucky, they might obtain a legal separation—or after 1829, an annulment.
The legal situation put many distressed couples in a quandary. Some devised adulterous situations. Those with money went out of the state to divorce—to places like Indiana in the 1800s, Nevada in the 1900s, or Mexico in the 1960s. (The cheap, fast Mexican divorce drew many celebrities too, including Marilyn Monroe during her split from Arthur Miller.) Still others remained bound to spouses they could not stand.
In the early 20th century, a number of young women hired themselves out as "correspondents" in divorce cases—essentially bait for philandering husbands. In 1934, the New York Mirror published an article titled, "I Was the 'Unknown Blonde' in 100 New York Divorces!"—featuring one Dorothy Jarvis, who earned as much as $100 a job. Ms. Jarvis had several tactics, beyond taking her date to a hotel room and awaiting ambush. There was the "push and raid" (where she would push herself into a man's room, dressed only in a fur coat, then whip off her outer garment), as well as the "shadow and shanghai" and the "dance and dope."
There never was a shortage of juicy testimony. In the case of Cock v. Cock of 1818, an eyewitness testified that when Mr. Cock was away, he came to the house before sunrise to find Mrs. Cock in bed with another man, "she being undressed and he having his breeches unbuttoned and down about his feet." Likewise, in the case against Aaron Burr, the infamous founding father, a servant deposed that she had seen "Jane McManus with her clothes all up & Coln Burr with his hands under them and his pantaloons down." (The divorce was granted the day Mr. Burr died.)
Then there were those who were desperate enough to fight the law, most without success. The extraordinary case of Eunice Chapman, which drew national attention, was a rare instance of triumph. When she met her husband in Durham, N.Y., in 1802, Eunice Hawley was a 24-year-old beauty headed toward spinsterhood, thanks to her family's financial failings. She was initially put off by the advances of James Chapman, a widower 15 years her senior, as she later wrote. However, he had a good business and promised her security, and after two years of his dogged pursuit, Ms. Hawley accepted his hand in matrimony.
Eight years and three children later, the marriage fell apart—according to her, because of his abuse, alcoholism and infidelity; according to him, because of her "abusive tongue." Finally James left Eunice and their children, ages 2, 5 and 6, with no plans to return.
This might have been the end of the story, had James not encountered a religious society called the Shakers. Now famed for their spare, modern-looking designs, the Shakers were a radical sect that, in following the teachings of their English-born leader, Ann Lee, required their followers to renounce their sexuality, all private property and personal family bonds for a larger spiritual union. To James, the Shakers' spiritual inspiration and orderly lifestyle were just what his family needed, and he hoped that his wife would agree. Eunice did not.
Real-estate heir Leonard Kip Rhinelander (above, at right) eloped with Alice Jones, below in October 1924—and then New York society discovered she was a descendant of West Indians. The following month, Mr. Rhinelander filed for an annulment, claiming she had deceived him about her race. After a well-publicized trial, the annulment was denied; in 1929, the couple finally agreed to a Nevada divorce.
..From there, the Chapmans became locked in a battle for the children who were, by the law and culture of the times, considered the rightful property of their father. Eventually James exercised his paternal prerogative: While Eunice was out, he seized the children and brought them to the Shakers near Albany, N.Y. Later, when Eunice came after them, he took the children into hiding among the Shakers in New Hampshire.
Eunice was now an abandoned woman, with no access to her children, and no secure way to rid herself of her husband—a situation made critical by the legal status of married women at the time. From the moment she wed, a woman like Eunice was considered "civilly dead" by law. She could not own property, earn her own wages, sue or be sued, make a will or sign any other contract by herself. She would remain in this state until her husband died or she managed to obtain a full divorce.
Years later, Eunice's opponents would complain that Eunice had plenty of recourse in the existing divorce laws, since she could charge her husband with adultery. Not only did she claim to have had "ocular demonstration" of his cheating, but she had an eyewitness who could testify that he had seen James lying in a back-room bed with another woman. The problem was that even with such proof there was no guarantee that a court would take Eunice's side. What scholar Hendrik Hartog has called a "guilty mind" was required, and Eunice would be hard pressed to present her husband as an incorrigible adulterer, in need of punishment, when he had joined a celibate sect.
So what was Eunice to do? An adultery trial would be expensive, as well as risky. And she would have to find James first, which could take years, if she could find him at all. One other legal option remained: She could petition the legislature for a special act of relief that would grant her a divorce as an exception to the existing laws. To do so, she would have to find a legislator willing to push her petition through the Capitol—no small task, since it would have to win favor not only with both houses, but also with the Council of Revision, which had veto power over the legislature. Legislative divorces were actually common practice in other states. But then, as now, New York was unusually conservative and had never issued one.
Going against the odds—and all expectation that she remain at home and accept the actions of her husband—Eunice fought a dazzling battle. She courted politicians, published tell-alls about Shaker "captivity" (which she distributed to legislators, and peddled everywhere), and made the most of what would now be called her phenomenal sex appeal. Her case drew crowds and even attracted the attention of Thomas Jefferson (who was outraged on behalf of the Shakers, not Eunice).
Some lawmakers argued that as badly as Mr. Chapman had treated his wife, the couple should not be allowed a divorce, since an end to the marriage would deprive the bad husband of the possibility of reform. Other legislators warned that permitting this divorce would ruin womankind. In an 1818 speech before the Assembly, Nathan Williams said: "By passing this bill we shall give boldness to the female character. Those who are now apparently amiable, encouraged by the success of Eunice Chapman, would become emboldened….They, like Eunice Chapman, would leave their retirement, and by familiarity with gentlemen would soon…be haunting the members—for divorces!"
Other arguments were not so different from those in circulation today. A main strike against Eunice's case was that relaxing the divorce laws would prevent couples from working things out, leading to more divorces. Some contemporary activists would agree: The spokesman for the New York State Catholic Conference, Dennis Poust, recently suggested that the proposed changes would make it "easier to get out of marriage than it is to get out of a cell phone contract."
After three years' battle, in 1818, Eunice Chapman clinched unprecedented rights to custody, as well as a legislative divorce. Her triumph did not secure her children's return—for that, mob action, a final face-off with James in New Hampshire, and yet another kidnapping would be required—but it paved the way. Others have not been so fortunate. Eunice's case goes down as the only divorce in New York history that was granted as a direct act of legislature.
Petitioners did lobby the legislature, and at least one got part way through. Jacob Scramling sought relief after his wife, who had been presumed drowned, was found and then refused to come home. He won approval in the Assembly in 1845, but lost in the Senate. One year later, legislative divorce was abolished, leaving divorcing New Yorkers with no option but to charge each other with adultery. Only in 1966, with the passage of the Divorce Reform Law, did New York catch up with other states by admitting additional grounds such as abandonment and cruelty.
It was only three years later, however, that no-fault divorce legislation passed in California. And for 25 years, New York has stood alone in its approach to no-fault divorce. On the cusp of a historic rewriting of the laws, some critics complain that the current no-fault divorce bill is bad for women. Others champion it as a step forward. Many other couples throughout history would surely have welcomed it.
—Ilyon Woo is author of "The Great Divorce."
